Maine judge considers ruling on free speech 'dead zone'

On June 19, U.S. District Judge Nancy Torresen in Portland, Maine, listened to arguments that the city’s so-called abortion clinic buffer zone either discriminates against unpopular viewpoints or is necessary for shielding the ears of women and their companions seeking abortion services. Attorneys for both sides of the argument were heard.

The plaintiffs made the case that the buffer zone imposes undue “viewpoint discrimination” and is thus an unconstitutional infringements of their First Amendment rights. The city of Portland, and Mayor Michael Brennan and all eight city councilors are named as defendants in the lawsuit. In November 2013, the Portland city council unanimously approved the buffer zone so as to delimit the area where pro-life demonstrators could exercise their right to free speech outside a Planned Parenthood abortion facility. They had been gathering on a weekly basis outside of the facility for a year. Planned Parenthood convinced the city council that persons entering the abortion facility, many of whom were not seeking abortions, felt harassed and intimidated by the protesters. The buffer zone, they argued, is necessary to protect their access to abortion and contraception services.

Judge Torresen said by the end of the hearing that the case will hinge on precedent to be set by the U.S. Supreme Court when it rules on a similar buffer zone in Massachusetts. The highest court in the land did not publish a ruling on McCullen v. Coakley, the Massachusetts case, thereby muddying the issue in the Maine case. The no-protest zone in Portland extends 39 feet from the Planned Parenthood office, which thereby pushes pro-life protesters across the street from the facility’s main door. In the Massachusetts case, the U.S. 1st Circuit Court of Appeals ruled that a Massachusetts law establishing 35-foot buffer zones around abortion clinics is legal. The decision was appealed to the Supreme Court, which is expected to issue its own precedent-setting ruling on the case within the next few weeks.

Torresen reminded attorneys in the court that “without a Supreme Court decision on McCullen, the law of the land is the 1st Circuit,” adding “I don’t think it’s particularly productive to try and predict what the Supreme Court will say about McCullen.” Continuing, she said, “If you think you can read the tea leaves on McCullen, I won’t stop you, but I will be using the 1st Circuit [ruling] in my consideration.”

Plaintiffs in the Portland case, Marguerite and Daniel Fitzgerald - plus two of their seven children - and Leslie Sneddon , claim the buffer zone restricts their freedom of speech. At the hearing, they sought a preliminary injunction, and urged Judge Torresen to invalidate the buffer zone until the court case if finally decided.

The plaintiffs’ attorney, Erin Kuenzig, argued that Portland should have ensured the safe passage of the abortion facility’s clients by merely enforcing the already existing laws against disorderly conduct or the blocking of public ways.

“The city has to show that they have not burdened more speech than is necessary to accomplish their goals,” Kuenzig told the media in a post-hearing press conference. Earlier this year, a similar legal argument was effective in case against the city, when attorneys for another group of demonstrators and panhandlers argued that an ordinance blocking people from standing in median strips was unconstitutional. U.S. District Court Judge George Z. Singal ruled that municipal authorities could satisfy public safety without infringing on free speech rights by enforcing laws already on the books.

During the hearing, Judge Torresen suggested it might be less than clear that laws previously on the books can solve the problem. She judge acknowledged that there is no police record of any criminal behavior on the part of the pro-life protesters. However, she questioned Attorney Kuenzig about whether persons entering the abortion facility may need insulation from pro-life speech. “Where do you draw the line?” Torresen asked Kuenzig. “Is it all the way up to ‘criminal’ that you would define as ‘peaceful’? Where would you put name calling? It’s not really criminal to call somebody a killer or a murderer. Would you call that peaceful?”

Kuenzig replied that comments such as those “certainly could be conveyed in a peaceful way,” and she argued that the large buffer zone effectively prevents the plaintiffs from “conversing with their fellow citizens” about alternatives to abortion and “conveying a message of hope.”

Arguing for City of Portland was attorney Trish McAllister. Disagreeing with Kuenzig, she said “The plaintiffs’ self-description as ‘peaceful conversationalists’ should in no way overshadow the fact that the environment outside the clinic was intimidating and frightening to many of the patients going to the clinic.” Nevertheless, Kuenzig refuted previous claims made by Planned Parenthood clients and qualified them as “hearsay.”

“If the reason they’re feeling harassed or intimidated is that they’re hearing ideas they disagree with, it’s not OK [to restrict the expression of those ideas],” she told Torresen. “That’s viewpoint discrimination.”

The motion for preliminary injunction in the case was filed in March 2014 by the Thomas More Law Center (TMLC) - a national public interest law firm based in Michigan on behalf of plaintiffs Fitzgerald and Sneddon. According to TMLC, the Portland buffer-zone ordinance” creates a free speech dead zone which effectively prevents pro-life counselors from reaching out to women who are contemplating an abortion.” Moreover, the ordinance subjects those violating the buffer-zone to a $100 fine for exercising their free speech.

TMLC Senior Trial Counsel, Erin Mersino, commented, “The ordinance does not accomplish anything other than making the public sidewalk open to one class of people, while excluding another based upon the point of view of one’s speech- if you’re trying to counsel a patient of Planned Parenthood, then you are no longer welcome on the public sidewalk and you are subject to fines. That concept is un-American. All Americans regardless of viewpoint should be able to voice their views on the public sidewalk and in the public square. Taxpayers paid for that sidewalk for public use. It is not the private property of Planned Parenthood, nor should it be treated that way.”

In a statement, TMLC said that during oral arguments before the Supreme Court, a majority of the nine justices expressed concern that buffer zone laws may be writ too broadly. Justice Elena Kagan’s questions seemingly indicated that the size of the buffer zone was simply too large. Similarly, Justice Stephen Breyer expressed concerns over whether the law sought to distinguish between those who sought to conduct “calm conversation,” like Sneddon and the Fitzgeralds and those who are disruptive.

For TMLC, Mersino predicted “The Supreme Court’s decision in McCullen v. Coakley will be instructive for the Maine case, however it may not be determinative. The prohibited speech zone in the Maine case is even larger and even more intrusive on our Constitutional freedoms than the zone the Supreme Court is currently examining.”